A suit for recovery of possession asks a civil court to put you back in possession of land or a building, and usually for the profits the other side earned while they held it. The plaintiff must prove the right on which the claim rests — normally title and the fact that possession went to the defendant — and the court then passes a decree for possession, with mesne profits dealt with separately. Where only possession, and not title, is in question, a much shorter route is available.
Who this applies to
- An owner who has been kept out of land by a relative, a former tenant or a stranger.
- A purchaser who paid for a plot or flat but was never given possession.
- A co-owner excluded from joint property by another co-owner.
- A person recently dispossessed without any order of law, who wants a quick restoration.
Title-based possession and possession-based possession
Two different suits are often confused. A suit on the strength of title is filed under Section 5 of the Specific Relief Act 1963, which allows a person entitled to the possession of specific immovable property to recover it in the manner provided by the CPC. Here the plaintiff must prove the title, or the right to possession, that supports the claim, and then show that the defendant is in possession against that right.
A suit under Section 6 of the Specific Relief Act is different: it belongs to a person who has been dispossessed of immovable property otherwise than in due course of law. It is decided on prior possession alone — the plaintiff need not prove title at all — but it must be filed within six months of the dispossession, it is a summary remedy, and it is not available against the Government. Once the six months pass, or where the claim is against the Government, the plaintiff is left to the longer title-based suit.
What the plaintiff must prove, step by step
- The identity of the property: clear boundaries and measurements, matching the deed and the record-of-rights, so that the decree can be executed on the ground.
- The right claimed: ownership, lease, or an agreement coupled with payment, depending on the nature of the suit.
- That the defendant is in possession: possession in the defendant at the time of the suit is essential to a decree for delivery.
- That the defendant's possession is unlawful: the defendant must have no better right, and any licence or tenancy must have ended.
- Mesne profits, if claimed: these are the profits the defendant enjoyed, or could with reasonable diligence have enjoyed, from the date of dispossession until delivery. The court usually passes a decree for possession first and then directs an inquiry into the amount under Order XX Rule 12 of the CPC.
Evidence to preserve
- Title deeds and the chain of documents, with the record-of-rights, khatian and mutation records.
- Receipts for rent, tax, electricity or water that show who was in possession and when.
- Photographs, with dates, of the property and of the defendant's occupation.
- Survey or measurement records, and an application for a court commission to inspect the land.
- Correspondence — notices, replies, agreements — showing the terms and any refusal.
- Witnesses who can speak to your possession and to the date the defendant entered.
A court commission to inspect and measure the property is often the difference between a decree that can be executed and one that cannot. Details of the pleadings appear in our civil litigation formats.
The defendant's usual defences
- Adverse possession: the claim that the defendant has held the land openly and continuously for the statutory period, so that the plaintiff's right to sue is barred. The burden is on the defendant, and mere possession, however long, is not enough.
- Tenancy or licence: a claim that the defendant is a lawful tenant or licensee, which changes the entire nature of the case and the forum.
- Part performance: a defence under Section 53A of the Transfer of Property Act 1882, where a purchaser has taken possession under a written contract and performed his part, so that the transferor cannot disturb him.
- Denial of the plaintiff's title or of the boundaries, which makes the survey and the identity of the land decisive.
Where the dispute is essentially about who owns the land, it is prepared as a title dispute first — see our title dispute service.
Limitation
The six-month window for a possession-based suit under Section 6 of the Specific Relief Act is strict and runs from the date of dispossession. The longer suit based on title is governed by the Limitation Act 1963, which fixes the period by reference to the nature of the property and the claim, and also the period after which a defendant's adverse possession will bar the plaintiff. Where the suit is filed after the dispossession, the qualifying question is not only when the defendant entered but how the entry is legally described. A claim for mesne profits is generally taken up in the same suit and quantified by an inquiry after the decree for possession.
Common questions
Do I have to prove title to get possession back?
Not always. If you were dispossessed without due process of law, Section 6 of the Specific Relief Act lets you recover possession on the strength of your prior possession alone, provided you sue within six months and not against the Government. After that window, you normally have to prove your right.
What are mesne profits and when are they awarded?
Mesne profits are the income the defendant made from the property, or could have made, between dispossession and delivery. They are usually claimed in the plaint and quantified by a separate inquiry directed under Order XX Rule 12 of the CPC, after the decree for possession is passed.
Can I stop the defendant from alienating the land during the suit?
Yes — an application for a temporary injunction under Order XXXIX of the CPC is normally filed with the plaint, to restrain the defendant from selling, mortgaging or further encumbering the property until the suit ends.
How is the land identified if the deed is vague?
The court can appoint a commissioner to inspect, measure and report on the property. A local investigation under Order XXVI of the CPC fixes the identity and boundaries on the ground, so that the decree can later be executed without ambiguity.
FileX Advocates & Legal Consultants, Kolkata, appears in these matters before the Calcutta High Court, the City Civil and Sessions courts, and the property and tribunal forums. For a free first consultation, call +91 7439811422 or WhatsApp us, or write through our contact page.